A Few Takes on Yesterday's Historic Gay Marriage Arguments at the Sixth Circuit Court of Appeals

Here are a few takes on yesterday's historic hearing of six separate gay marriage cases from Ohio, Kentucky, Michigan, and Tennessee, at the Sixth Circuit Court of Appeals. Above, Judges Martha Daughtrey, Jeffrey Sutton, and Deborah Cook.

Based on their line of questioning, two judges — U.S. Circuit Judge Martha Craig Daughtrey and U.S. Circuit Judge Jeffrey Sutton — seemed prepared to rule against bans on same-sex marriage. The remaining judge, U.S. Circuit Judge Deborah Cook, was relatively quiet, but appeared poised to rule in favor of the laws. Similar to other federal appeals courts, the panel seems headed to make a 2-1 decision in favor of marriage equality.

Although Sutton didn’t make an effort to telegraph how he’d rule, throughout his questioning he suggested he believes prohibition on gay nuptials are unconstitutional. Ruminating on the changing societal perception of marriage, Sutton said a ban a same-sex marriage “seems to hard to justify even on rational basis grounds” if the institution is intended to express love and commitment.

That said, Sutton also had tough questions for attorneys seeking to overturn bans on same-sex marriage, posing the inquiry of why the LGBT rights movement would want to proceed through the judicial process — as opposed to legislative and ballot process — if the desired result was changing hearts and minds to achieve greater acceptance.

In three hours of back-and-forth questioning, it appeared that neither side could take victory for granted in the United States Court of Appeals for the Sixth Circuit, where the cases from Kentucky, Michigan, Ohio and Tennessee were heard by two judges appointed by President George W. Bush and one by President Bill Clinton.

Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

“I’d have thought the best way to get respect and dignity is through the democratic process,” he said, expressing a view that, in practice, would most likely deliver a victory to the states seeking to keep bans on same-sex marriage.

It became clear after three hours of arguments that the panel could become the first roadblock for proponents of same-sex marriage who have had an extraordinary winning streak in knocking down state restrictions following a landmark decision by the Supreme Court in 2013.

That 5 to 4 ruling struck down the part of the federal Defense of Marriage Act that defined marriage as only between a man and a woman.

But a panel of three randomly chosen judges of the U.S. Court of Appeals for the 6th Circuit left questions about whether it would follow the lead of two other appeals courts. Those courts said the reasoning of the Supreme Court’s decision meant that states lacked the right to limit marriage to opposite-sex couples and to deny recognition of unions conducted elsewhere.

Cook, also a Bush appointee, was largely silent throughout the afternoon, with the exception of a few questions that seemed intended to help anti-gay-marriage attorneys hone their arguments. She is so known for her conservatism that she was on the short-list to be appointed to the Supreme Court for the vacancy filled by Samuel Alito.

One concern for Sutton was the fact that the Supreme Court passed last year on a prime opportunity to assert a federal right to marriage. At the same time the high court considered the Windsor case, it also dealt with Hollingsworth v Perry, an appeal of a federal court in California’s decision to strike down a gay marriage ban put in place by voters in 2008 via Proposition 8. The court dismissed that case — and in the process let the California decision stand — on technical legal grounds unrelated to the question of gay rights.

“It does seem fair to say the Supreme Court’s trajectory favors” the pro-gay side, Sutton said. Citing cases that went in favor of gay rights, he then noted, “but they didn’t reach today’s issue in Hollingsworth.”

The 6th Circuit presents gay marriage foes with their best opportunity so far to halt an unbroken streak of more than 30 state and federal cases that have gone for pro-gay groups since Windsor. Sutton and Cook are both appointees of the Bush administration, which vetted federal judge candidates to ensure their conservative bona fides.

That’s a shift from the 4th and 10th circuit panels, which were dominated by more liberal or moderate appointees. In all, 15 of the 22 federal judges who have ruled on gay-marriage bans were Democratic appointees.

Constitutional law professors and court observers say that the 6th Circuit could be the first to uphold statewide bans on gay marriage following an unbroken string of more than 20 rulings in the past eight months that have gone the other way.

They point to Sutton, the least predictable judge on the panel. In 2011, he shocked Republicans and may have derailed his own chances to advance to the U.S. Supreme Court when he became the deciding vote in a ruling that upheld President Barack Obama's health care law.

If the 6th Circuit decides against gay marriage, it would create a divide among federal appellate courts and put pressure on the U.S. Supreme Court to settle the issue in its 2015 session. The panel did not indicate when it would rule.

Comments

It would be quite fitting if the 6th Circuit ruled against marriage equality, since they have taken over for the the 9th Circuit as the most-reversed by the Supreme Court.

Posted by: Jack | Aug 7, 2014 11:39:56 AM

Hey Judge Sutton... I just need my rights. I don't need or care about hearts and minds and the acceptance of others.

Posted by: anon | Aug 7, 2014 11:51:40 AM

I'm cautiously optimistic. At this point it is really difficult to write an opinion against marriage equality without exposing your own ignorance, prejudice and bigotry. Just read the dissents, they're not even logical. It's a well known fact that popular vote doesn't override the constitution.

Posted by: Gerry | Aug 7, 2014 12:08:29 PM

The obvious answer to Judge Sutton's questions about "hastening an outcome": most people would rather have civil rights when they're alive than when they're dead. Should the Lovings have waited till all of racist America was on board with mixed-race marriage?

He also seems to ignore that we've been doing the hearts and minds stuff for decades now, which is why states like mine passed equality via the legislature and why a majority of Americans support us--that majority just doesn't happen to live in Oklahoma and Mississippi.

Why didn't Towleroad link to the audio of the hearings that was available late yesterday afternoon? Scooped by many of your "competitors," and STILL not linking to it?? Fail, Towleroad ... Utter Fail.

Posted by: Zlick | Aug 7, 2014 12:25:20 PM

Judge Sutton, please consider the huge amount of money behind the anti-gay marriage ballots by donors like the Mormon Church, Chick-Fil-A, Amway and others. How can an individual voter compete with this concentration-of-money's anti-equality propaganda?

Posted by: trees | Aug 7, 2014 12:49:16 PM

Oh, perhaps I should post the link myself so you can copy/paste if you want to listen. It's definitely worthwhile. The lawyers arguing for our equal marriage rights are mostly very impressive. And Judge Sutton remains a wild card that will alternately cheer you and frighten you.

The cases each have separate audio and please note the Ohio case appearing last on the linked page was actually the next-to-last hearing.

sutton was passed over for alito when w had another chance to fill an opening on the supreme court because he dared not to declare obamacare unconstitutional. and the republicans rail about democrats appointing activist judges? up is down, black is white, the sun sets in the morning and rises at night.

Posted by: woody | Aug 7, 2014 12:54:03 PM

You cannot predict Sutton. He is a leading conservative scholar, and he clerked for Justice Scalia. On the other hand, he also clerked for Justice Powell. He is Presbyterian, not Catholic. He represented the NAACP to argue that Ohio's hate crimes statute was constitutional, and he also defended Ohio's minority set-aside law in the Supreme Court. He represented an association of disabled students to argue that Ohio colleges were violating federal law by refusing to provide voter registration material to certain disabled students. Maybe most important, he is only 54 years old and he has 3 young children -- to whom he would eventually have to justify an anti-gay vote. He's already ticked off the conservative Republicans by voting to uphold ObamaCare and probably losing a chance at a Supreme Court appointment .... so politically, does he try to make up for that vote (by upholding the marriage bans) or does he decide that he has nothing more to lose (by striking down the marriage bans).
No one should try to predict his vote. When the decision is announced, his vote won't be a surprise whether its in favor of the ban or against it.

Posted by: MiddleoftheRoader | Aug 7, 2014 1:54:24 PM

I was really annoyed that Sutton didn't seem to want to do his job as a judge, and seemed almost to embrace the idea that courts are not a co-equal branch of government, but might not even be necessary at all.

What does it matter if more dignity might possibly be attainable some other way? The reason these people are in court is because their existing fundamental rights are being violated now, on a basis that has nothing to do with anything but hatred.

It's no surprise to anyone that Michigan does have millions of people with hate in their hearts. It's not controversial to say it. If it's demeaning to the voters, perhaps they should ask themselves why.

Posted by: Randy | Aug 7, 2014 1:56:27 PM

@WOODY Your timeline is a bit inverted ;)

Posted by: Josh | Aug 7, 2014 2:09:14 PM

The fight for same sex marriage isn't about begging the populous for new rights or modifications to them, it's about acknowledging and removing the illegal blockades to our already guaranteed rights. In a case of violated rights, there is no need to wait for the populous to respond.

Posted by: Hey Darlin' | Aug 7, 2014 2:09:19 PM

Yeah, RANDY, Judge Sutton was so freaky annoying with his constant refrain that the gay community would be better off if he just didn't do his own job as a judge. WTF?

Less often, but also repeated was Sutton's plea not to offend bigoted voters by calling them bigots. If he was playing devil's advocate with these childish lines of thought, Lucifer needs a better lawyer.